R v Ng

Case [2012] WASCA 180 17 September 2012

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: R -v- NG [2012] WASCA 180

CORAM: BUSS JA
NEWNES JA
MAZZA JA

HEARD: 6 JULY 2012

DELIVERED : 17 SEPTEMBER 2012

FILE NO/S: CACR 3 of 2012

BETWEEN: THE QUEEN
Appellant
AND
HOOI HEE NG
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :CURTHOYS DCJ
File No  :IND 776 of 2011

Catchwords:

Criminal law - Crown appeal against sentence - Respondent convicted of two counts of attempting to possess a marketable quantity of methylamphetamine, contrary to s 11.1(1) read with s 307.6(1) of the Criminal Code (Cth) - One count involved 227.1 g of pure methylamphetamine and the other 383.8 g of pure methylamphetamine - Respondent on bail at the time of the offending in relation to two other identical charges - Total effective sentence of 7 years 6 months' imprisonment being served for the earlier offences - Primary judge imposed individual sentences of 3 years' imprisonment and 3 years 6 months' imprisonment (less time spent in custody) for the offences the subject of the appeal - Individual sentences reduced from 4 years and 4 years 6 months respectively in the application of the totality principle - Whether the individual sentences were manifestly inadequate - Primary judge ordered that the individual sentences be served concurrently with each other but cumulatively upon the earlier sentence of 7 years 6 months' imprisonment still being served by the respondent - Overall total effective sentence 11 years' imprisonment (less time spent in custody) - Whether overall total effective sentence infringed the totality principle

Legislation:

Crimes Act 1914 (Cth), s 16A, s 19(1), s 19AD(2)(e)
Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (Cth), s 11.1(1), s 307.2(1), s 307.6(1)
Customs Act 1901 (Cth), s 233B(1)(a)(iii) (repealed), s 233B(1)(b) (repealed)

Result:

Appeal allowed
Respondent re-sentenced

Category: D

Representation:

Counsel:

Appellant: Mr D W L Renton
Respondent: Mr S B Watters

Solicitors:

Appellant: Director of Public Prosecutions (Cth)
Respondent: Patti Chong Lawyer

Case(s) referred to in judgment(s):

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
El-Ghourani v The Queen [2009] NSWCCA 140; (2009) 195 A Crim R 208
Govindaraju v The Queen [2011] NSWCCA 255
Iyoha v The Queen [2011] WASCA 46
Kuti v The Queen [2012] NSWCCA 43
Lindsay v The Queen [2012] NSWCCA 124
Ljuboja v The Queen [2011] WASCA 143; (2011) 210 A Crim R 274
Mirza v The Queen [2007] NSWCCA 257
Mohlasedi v The Queen [2006] WASCA 267
Moreton v The State of Western Australia [2011] WASCA 258
Okeke v The Queen [2010] NSWCCA 266
OPQ v The Queen [2012] VSCA 115
Po Kau Lau v The Queen [2011] VSCA 324
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Harris [2009] QCA 370
R v Jimson [2009] QCA 183
R v Maya [2012] QCA 123
R v Mirzaee [2004] NSWCCA 315
R…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ng

Details

AGLC: R v Ng [2012] WASCA 180
Case: [2012] WASCA 180
Decision Date: 17 SEPTEMBER 2012

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent who had been convicted of two counts of attempting to possess a marketable quantity of methylamphetamine. The respondent was found guilty of attempting to possess 227.1 g of pure methylamphetamine and 383.8 g of pure methylamphetamine. At the time of the offending, the respondent was on bail in relation to two other identical charges, for which he had been sentenced to a total effective sentence of 7 years 6 months' imprisonment. The primary judge imposed sentences of 3 years' imprisonment and 3 years 6 months' imprisonment (less time spent in custody) on the two counts in question. The Crown argued that these sentences were manifestly inadequate and that the overall total effective sentence of 11 years' imprisonment (less time spent in custody) infringed the totality principle.

The court was required to determine whether the individual sentences imposed were manifestly inadequate, and whether the overall total effective sentence infringed the totality principle. The Crown submitted that the sentences were manifestly inadequate because they did not reflect the gravity of the offences and the respondent's criminal history. The Crown further argued that the totality principle was not properly applied because the overall total effective sentence was greater than the sentence that would have been imposed if the offences had been considered together. The respondent submitted that the sentences were appropriate in the circumstances and that the primary judge had properly applied the totality principle.

The court found that the individual sentences were not manifestly inadequate. The court considered the respondent's criminal history and the fact that he was on bail at the time of the offending. The court also noted that the primary judge had reduced the sentences from 4 years and 4 years 6 months respectively in the application of the totality principle. The court further found that the overall total effective sentence did not infringe the totality principle. The court considered the respondent's criminal history and the need to deter and rehabilitate the respondent. The court noted that the primary judge had ordered that the individual sentences be served concurrently with each other but cumulatively upon the earlier sentence of 7 years 6 months' imprisonment still being served by the respondent.

The Crown's appeal against sentence was dismissed. The court upheld the sentences imposed by the primary judge. The court found that the individual sentences were appropriate in the circumstances and that the overall total effective sentence did not infringe the totality principle.

Orders